Allowed

Reena Chandy v. Union of India

Kerala HC22 Nov 2021WP(C)/4763/2021

Case brief

AI extract

What is this about?

The High Court of Kerala held that a flag-officer of Singapore passport issued to a petitioner in her minority does not conclusively prove voluntary acquisition of that citizenship under Schedule III, Rule 3 of the Citizenship Rules. The Court directed the Central Government to determine the issue under Section 9(2) of the Citizenship Act. The writ was disposed via a direction for a representation

What did the court decide?

Directed the petitioner to file a representation before the Union of India within one month for a determination of citizenship acquisition by the Central Government.

Reena Chandy Vs Union of India — Constitutional and Fundamental Rights | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

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MONDAY, THE 22^ND DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943

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WP(C) NO. 4763 OF 2021

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PETITIONER:

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REENA CHANDY

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W/O. SAMUEL CHANDY, 16-A, NOEL MATTEETHARA HEIGHTS, BAKER JUNCTION, KOTTAYAM - 686001.

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BY ADVS.

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ENOCH DAVID SIMON JOEL SRI.S.SREEDEV SRI.RONY JOSE SHRI.CIMIL CHERIAN KOTTALIL

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RESPONDENTS:

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1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, E BLOCK, CENTRAL SECRETARIAT, NEW DELHI, DELHI - 110001.

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2 REGIONAL PASSPORT OFFICER REGIONAL PASSPORT OFFICE, PANAMPILLY NAGAR, COCHIN - 682036.

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SHRI.P.VIJAYAKUMAR, ASG OF INDIA SHRI.S.MANU,CGC MS.KRISHNA, CGC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.11.2021, THE COURT ON 22.11.2021 DELIVERED THE FOLLOWING:

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JUDGMENT

The petitioner was born in the year 1953 to Indian parents, who

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were then working in Singapore. The petitioner's father was born in India and though he was employed and residing in Singapore for several years,

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he had neither relinquished his Indian citizenship nor acquired Singapore citizenship and held an Indian Passport all throughout. Since the petitioner's father wanted to return to India and settle here, petitioner's parents applied for a passport for the petitioner to travel to India. Having

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been born in Singapore, petitioner was issued with a passport of the Republic of Singapore on 19.07.1967 which was valid for a period of five years. The petitioner has produced the copy of the said passport bearing No.43186 as Ext.P2. Since the petitioner was originally given the name 'Mary Jacob', the said name is shown in the passport.

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On the basis of the said passport, the petitioner travelled to India along with her parents in the year 1970 and thereafter never returned to

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Singapore. She has been residing in India permanently thereafter. She

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states that, being an Indian Citizen by descent, she has been issued with an Aadhaar card by the Unique Identification Authority of India, PAN Card by the Income Tax Department and a Voters ID card by the Election Commission of India.

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Fifty years after settling down in India, the petitioner wished to visit Singapore, the country where she was born, to revisit her memories from her childhood. Since the petitioner did not possess a passport, she submitted an application for the same before the 2^nd respondent, the Regional Passport Officer, Cochin, in the year 2017. However, the petitioner was informed by the 2^nd respondent through Ext.P6 letter that, her application for issuance of passport cannot be processed since she had not submitted the citizenship document. On receipt of Ext.P6, the petitioner made a personal enquiry with the 2^nd respondent and it was informed that, since the petitioner was issued with Ext.P2 passport by the Republic of Singapore, there existed a doubt as to the nationality of the petitioner.

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The petitioner did not pursue Ext.P6 as she was not in a position

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to travel due to physical ailments. Later, she made an online application for passport and by Ext.P8, she was informed by the 2^nd respondent that her application for issuance of passport cannot be processed in view of Ext.P6 as the previous application for issuance of passport was closed since the petitioner failed to produce any document evidencing citizenship.

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The petitioner has therefore filed this writ petition challenging Exts.P6 and P8 and has sought for a direction to the respondents to reconsider her application for issuance of passport, without insisting on production of a citizenship document.

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According to the petitioner, for the purpose of processing an application as per the Passport Rules, 1980, a citizenship document is required only if the applicant is a citizen of India by registration or by naturalization. The petitioner being a citizen of India by descent, there is no requirement of citizenship document as required in Ext.P6. Petitioner's contention is that Ext.P2 passport was one issued on the basis of an application submitted by her parents during her minority and that

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she had absolutely no role in that and she had not voluntarily applied for Ext.P2 passport. The validity of Ext.P2 passport had already expired on 19.07.1972 and was never renewed. She states that, all along she was treated as an Indian citizen, being a citizen by descent and she was issued with Aadhaar card, PAN Card and Voters ID card by competent authorities in India and these documents are more than sufficient to prove that she is a citizen of India.

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A statement has been filed on behalf of the respondents wherein it is stated that the petitioner is a holder of Singapore passport and a citizen of Republic of Singapore. Reference is made to Section 4 and 4(1-A) of the Citizenship Act, 1955 to contend that the petitioner did not renounce her Singapore citizenship and did not surrender the Singapore passport when she attained majority at the age of 18 and therefore she has to produce a citizenship certificate from the Ministry of Home Affairs, New Delhi for issuance of an Indian Passport.

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Heard Ms. Suzanne Kurian, the learned counsel for the petitioner and Ms. Krishna S, the learned Additional Central Government Counsel

W.P.(C) 4763/2021

for the respondents.

Ms. Suzanne would contend that the petitioner has not voluntarily acquired the citizenship of the Republic of Singapore and only for the reason that she had a Singapore passport which had long expired, it cannot be inferred that she had acquired the citizenship of Republic of Singapore. She has not voluntary obtained the Singapore passport and Ext.P2 passport was applied for and received by her parents for the purpose of travel to bring her to India to settle here. Further, she never renewed the said passport on attaining majority and therefore, it cannot be contended that the petitioner is a citizen of the Republic of Singapore and she cannot be insisted to produce citizenship document.

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Ms. Krishna, the learned Counsel for the respondents relied on Article 9 of the Constitution of India and submits that persons voluntarily acquiring citizenship of a foreign State shall not be a citizen of India. She also relied on Section 9 (1) of the Citizenship Act, 1955 which provides that, any citizen of India, who by naturalization, registration or otherwise has voluntarily acquired the citizenship of

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another country shall, upon such acquisition cease to be a citizen of India. Ms. Krishna would also rely on paragraph 3 of schedule III to the Citizenship Rules, 2009 which provides that, the fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date. On the basis of the said provisions, Ms. Krishna contends that, since the petitioner has obtained Ext.P2 passport from the Republic of Singapore on 19.07.1967, the same is the conclusive proof of her having voluntarily acquired the citizenship of Singapore. When the petitioner preferred an application for passport in the year 2017, in the light of Ext.P2 passport issued by the Republic of Singapore, a question arose as to whether the petitioner has acquired the citizenship of Singapore. Ms. Krishna refers to Section 9(2) of the Citizenship Act which provides that, if any question arises as to whether, when or how any citizen of India has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this

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behalf. Ms. Krishna also refers to paragraph 1 of schedule III to the Citizenship Rules, which provides that, where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require him to prove within such period as may be fixed by it in this behalf, that he has not voluntarily acquired the citizenship of that country; and the burden of proving that he has not so acquired such citizenship shall be on him. Relying on the said provision, the leaned counsel submits that since petitioner was issued with Ext.P2 passport by the Republic of Singapore, the burden is upon the petitioner to prove that she has not acquired the citizenship of the Republic of Singapore and the question shall be determined by the Central Government under Section 9 (2) on her request and based on such enquiry she will be issued with citizenship document, if she is entitled. Ms. Krishna has also relied on the decisions in K.L Modi v. Union of India (AIR 1970 Delhi 76), S.Nalini Srikaran v. Union of India (AIR 2007 Mad 187:2007 KHC 7500), Mumtaz Parveen v. State (judgment dated 28^th January, 2013 in CRL. REV. P. 367/2006 & Crl.

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M.A. No.5194/2006 of Hon'ble High Court of Delhi) in support of her contentions under Section 9 (2) of the Citizenship Act.

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Per contra, Ms. Suzanne submits that Article 9 of the Constitution of India as well Section 9(2) of the Citizenship Act will not apply in the case of the petitioner as she has not voluntarily acquired the citizenship of the Republic of Singapore. Ms. Suzanne refers to paragraph 3 of schedule III of the Citizenship Rules and contends that the said paragraph applies only in a case where a citizen has obtained a passport from Government of another country. The word 'obtained', according to Ms. Suzanne, shall be a voluntary act and in this case, the petitioner has not voluntarily obtained the passport of Singapore and the passport was applied for and received by her parents only for the purpose of travel to bring the petitioner to India. Further, the petitioner never renewed the said passport on attaining majority. Therefore, it is contended by the learned counsel that paragraph 3 of schedule III to the Citizenship Rules will not apply in the case of the petitioner as she has not obtained the Singapore passport voluntarily. Ms. Suzanne has relied

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on the decision of the Constitution Bench of the Hon'ble Supreme Court

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in Muhammed Ayoob Khan v . Commissioner of Police, Madras [AIR 1965 SC 1623] wherein it was held that obtaining of a passport of foreign country cannot in all cases merely be regarded as conclusive proof of voluntary acquisition of foreign citizenship and that the presumption in Paragraph 1 of schedule III to the Citizenship Rules is a rebuttable one. Ms. Suzanne also submits that the procedure under Section 9(2) of the Citizenship Act is contemplated only when the person is proceeded against under the provisions of the Foreigners Act or under the Citizenship Act. No proceedings are initiated against the petitioner under the said Acts.

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In order to appreciate the rival submissions advanced by Ms. Suzanne and Ms. Krishna, it is apposite to refer to the relevant Articles in Part II of the Constitution of India. Part II of the Constitution of India deals with 'Citizenship'. Article 5 reads as follows;

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"5. Citizenship at the commencement of the Constitution.-

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At the commencement of this Constitution every person who has his domicile in the territory of India and -

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(a) who was born in the territory of India; or

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(b) either of whose parents was born in the territory of India; or

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(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India."

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Articles 8 to 11 reads thus:

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“8. Rights of citizenship of certain persons of Indian origin residing outside India.-Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefor to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India.

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9. Persons voluntarily acquiring citizenship of a foreign State not to be citizens.- No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any

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foreign State.

10. Continuance of the rights of citizenship.-Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

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11. Parliament to regulate the right of citizenship by law.Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship."

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Here, it is also relevant to refer to Sections 4 and 9 of the Citizenship Act, 1955 and they read thus:-

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“ 4. Citizenship by descent. - (1) A person born outside India shall be a citizen of India by descent,―

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(a) on or after the 26th day of January, 1950, but before the 10th day of December, 1992, if his father is a citizen of India at the time of his birth; or

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(b) on or after the 10th day of December, 1992, if either of his parents is a citizen of India at the time of his birth:

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Provided that if the father of a person referred to in clause (a) was a citizen of India by descent only, that person shall not be a

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citizen of India by virtue of this section unless―

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(a) his birth is registered at an Indian consulate within one year of its occurrence or the commencement of this Act, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or

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(b) his father is, at the time of his birth, in service under a Government in India:

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Provided further that if either of the parents of a person referred to in clause (b) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section, unless―

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(a) his birth is registered at an Indian consulate within one year of its occurrence or on or after the 10th day of December, 1992, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or

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(b) either of his parents is, at the time of his birth, in service under a Government in India:

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Provided also that on or after the commencement of the Citizenship (Amendment) Act, 2003(6 of 2004), a person shall not be a citizen of India by virtue of this section, unless his birth is registered at an Indian consulate in such form and in such manner, as may be prescribed,―

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(i) within one year of its occurrence or the commencement of the Citizenship (Amendment) Act, 2003(6 of 2004), whichever is

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later; or

(ii) with the permission of the Central Government, after the expiry of the said period:

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Provided also that no such birth shall be registered unless the parents of such person declare, in such form and in such manner as may be prescribed, that the minor does not hold the passport of another country.

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(1A) A minor who is a citizen of India by virtue of this section and is also a citizen of any other country shall cease to be a citizen of India if he does not renounce the citizenship or nationality of another country within six months of attaining full age.

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(2) If the Central Government so directs, a birth shall be deemed for the purposes of this section to have been registered with its permission, notwithstanding that its permission was not obtained before the registration.

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(3) For the purposes of the proviso to sub-section (1), [any person] born outside undivided India who was, or was deemed to be, a citizen of India at the commencement of the Constitution shall be deemed to be a citizen of India by descent only.

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9. Termination of citizenship -(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26^th January, 1950 and the commencement of this Act, voluntarily acquired, the citizenship of

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another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India:

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Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs:

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(2) If any question arises as to whether, when or how any citizen of India has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.”

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Rule 40 of the Citizenship Rules, 2009 framed by the Central Government in exercise of the powers under Section 18 of the Citizenship Act, 1955 reads as follows:

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“40. Authority to determine acquisition of citizenship of another country.- (1) For the purpose of sub-section (2) of section 9, the Central Government may determine the issues as to whether, when or how any citizen of India had acquired the citizenship of another country.

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(2) The Central Government while determining any such issues shall have due regard to the rules of procedure specified in Schedule III."

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Schedule III to the Citizenship Rules, 2009 deals with rules

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of procedure for determining the issue whether a citizen of India has voluntarily acquired the citizenship of any other country and the same reads as follows:

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“1.Where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require him to prove within such period as may be fixed by it in this behalf, that he has not voluntarily acquired the citizenship of that country; and the burden of proving that he has not so acquired such citizenship shall be on him.

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2. For the purpose of determining any question relating to the acquisition by an Indian citizen of the citizenship of any other country, the Central Government may make such reference as it

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thinks fit in respect of that question or of any matter relating thereto, to its Embassy in that country or to the Government of that country and act on any report or information received in pursuance of such reference.

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3. The fact that a citizen of India has obtained on any date a

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passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.”

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“5. In determining whether a citizen of India has or has not

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voluntarily acquired the citizenship of any other country, the Central Government may take the following circumstances into consideration, namely: - (a) whether the person has migrated to

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that country with the intention of making it his permanent home; (b)

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whether he has in fact taken up permanent residence in that country; and

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(c) any other circumstances relevant to the purpose.

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xxx ”

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The petitioner claims to be an Indian citizen by descent by

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virtue of Section 4 (1) (a) of the Citizenship Act. The petitioner has fairly

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disclosed before the 2^nd respondent that she had been issued with a passport by the Republic of Singapore on 19.07.1967. Ext.P2 passport was valid only for a period of five years. It expired on 19.07.1972 and

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was never renewed. She submits that Ext.P2 passport was not voluntarily obtained by her. Relying on paragraph 3 of Schedule III to the Citizenship Rules, 2009, which provides that, the fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date, Ms. Krishna contends that the petitioner has voluntarily acquired the citizenship of Singapore. However, as rightly pointed out by Ms. Suzanne, the said presumption is a rebuttable one as held in Muhammed Ayoob Khan (supra).

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Going through the provisions of law extracted above, the question as to whether the petitioner has voluntarily acquired the citizenship of Singapore is a matter for the Central Government to consider under Section 9 (2) of the Citizenship Act, 1955. The jurisdiction and authority to decide the said question vests in the Central Government by virtue of Section 9(2) of the Citizenship Act, 1955 and Rule 40 (2) of the Citizenship Rules, 2009. Since the question as to

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whether the petitioner has voluntarily acquired the citizenship of Singapore has arisen pursuant to her application for passport before the 2^nd respondent, the said question has to be determined by the Central Government in accordance with the provisions of Section 9 (2) of the Citizenship Act, 1955. For the said purpose, the petitioner may approach the 1^st respondent by filing representation within a period of one month from today and the 1^st respondent shall consider the same as per the procedure specified and decide the question raised at the earliest in accordance with law and communicate the decision to the petitioner. Based on such decision, the 2^nd respondent shall take further steps on the application of the petitioner for passport.

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The writ petition is disposed of with the above direction. No order as to costs.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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APPENDIX OF WP(C) 4763/2021

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE DATED 01.12.1998 OF ISSUED BY THE ELECT	ELECTION IDENTITY CARD PETITIONER'S LATE FATHER ION COMMISSION OF INDIA.
EXHIBIT P2	A TRUE COPY OF T 43186 ISSUED BY THE	HE PASSPORT BEARING NO. REPUBLIC OF SINGAPORE.
EXHIBIT P3	A TRUE COPY OF THE 362225499138 ISSUED	AADHAAR CARD BEARING NO. TO THE PETITIONER.
EXHIBIT P4	A TRUE COPY OF PETITIONER BEARING	THE PAN CARD OF THE NO. ABWPC 2152L
EXHIBIT P5	A TRUE COPY OF THE NO.KL/13/090/10257	VOTERS ID CARD BEARING ISSUED TO THE PETITIONER.
EXHIBIT P6	A TRUE COPY OF THE ISSUED BY THE 2ND R	LETTER DATED 06.02.2017 ESPONDENT
EXHIBIT P7	A TRUE COPY OF RECEIPT BEARING NO THE 1ST RESPONDENT.	THE ONLINE APPOINTMENT .20-1002684305 ISSUED BY
EXHIBIT P8	A TRUE COPY OF RECEIPT BEARING BEARING THE ENDORSE THE 1ST RESPONDENT.	THE ONLINE APPOINTMENT NUMBER 20-1002684305, MENT FOR AND ON BEHALF OF

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spc/

Reena Chandy v. Union of India

Case brief

What is this about?

What did the court decide?

Reena Chandy v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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